Many young(er) attorneys abuse discovery as a matter of course – as if they have been taught how to be obstructionists at law school. I also think newer attorneys do the scorched earth route to create more billing. One dope sent me objections that were over 100 pages.

However, what I have been seeing lately is that the counsel responding to the written discovery does not understand what their obligations are in responding to written discovery. It’s as if they never read the statutes and never read any of the treatises. Instead the responses are full of garbage objections that have no merit and the responses show a failure of a proper investigation. This isn’t just coming from young lawyers but also seasoned lawyers with 15+ years of experience.

In understanding, what a party’s obligations are you need to understand that the purpose of the 1986 Discovery Act is to exchange information between the parties so each side can evaluate their strengths and weaknesses of their case so the case can be resolved before trial.

The attorney for the responding party needs to be aware of the statutes in responding to interrogatories, request for admissions and Requests for production of documents each have their own set of requirements for the response. Yet they have one thing in common:

The code requires that a party must make a reasonable and good faith effort to obtain the information. Regency Health Services, Inc. v. Superior Court (1998) 64 CA4th 1496. “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Superior Court (1978) 84 CA3d 771, 782. This includes

Requests for Production of Documents has a very specific obligation as you must make a “diligent search” and a “reasonable inquiry” which can be a very difficult standard for the responding party to meet if challenged.

There are many treatises on Discovery that explain in detail what are a party’s obligations in responding to discovery as well as what are the proper objections to written discovery. The treatises that I use are:

California Civil Discovery Practice 4th Edition (CEB 2017)

California Civil Discovery (LexisNexis 2017)

Cal Prac. Guide: Civil Procedure Before Trial (TRG 2017)

Cal Prac. Guide: Civil Procedure Before Trial FORMS (TRG 2017)

California Discovery Citations (TRG 2017)

Jefferson’s California Evidence Bench Book 4th Edition (CEB 2017)

I cannot stress how important it is to know your obligations in responding to written discovery as attorneys spend too much time and money arguing over inadequate responses to basic discovery.

Most cases rise and fall on whether there is documentary evidence supporting a claim or defense. Thus, the most important discovery device in a litigator’s toolbox is the ability to request documents pursuant to CCP 2031.210 et seq. Unfortunately, most lawyers fail to properly respond and produce documents which leads to the ever so popular Motion to Compel Further Responses and Production of Documents

Patrick Nolan’s article “How the crafty defense lawyer hides things by avoiding the details in requests for production of documents — Using the teeth of the statute to get the most out of RFPs” gives an eye opening tutorial on how to deal with a response that is not as straightforward as it appears. Below is his article.

Have you ever had a situation where the opposing side has responded to each of your document production requests with the response?

All responsive documents within the custody and control of responding party will be produced.

and then they dump thousands of documents on you with no rhyme or reason as to how they are organized.

You then diligently send your meet and confer letter stating that the documents are so disorganized that you “can’t make heads or tails as to which documents are responsive to which request.” Opposing counsel responds saying that the document production was in compliance with the code as the documents were produced “as they are kept in the usual course of business” and they will neither modify their response nor the production. So what do you do?

When I was a research attorney for Alameda County Superior Court, my judge drilled into me to always check the proof of service to make sure that it was signed and service on all parties had properly been made. As a Discovery Referee, I still review the proof of service first and I am always amused when the proof of service is signed saying that I was already served. Recently I was reading Aaron Morris’ article “Don’t be that Attorney—Ten Ways to Make Yourself Look Foolish”, a humorous article that many of us lawyers always wanted to write about the outlandish positions attorneys take. I specifically enjoyed his third pet peeve and had to pass it along.

Recently I saw the following document response and without even looking at the document request I knew that the response was bad and a motion to compel further responses was going to need to be filed:

Objection, as some or all of these documents are equally or more available to Plaintiffs. Without waiving, responding party states that all responsive, unprivileged, known, and reasonably available documents will be produced by Defendant, if they have not already been produced to Plaintiffs.

In most practices areas, facts are king. The attorney who can discover and present the best “facts” will be the most persuasive when presenting their case to the judge or jury. However, some cases can be won in the law and motion department with a Motion for Summary Judgment and/or Summary Adjudication. In these cases, the facts are less important than the law. If your case is one that you can win as a matter of law based on inconvertible facts (or the opponents admitted facts) and you believe that a Motion for Summary Judgment or a Motion for Summary Adjudication is appropriate, you need to develop a discovery plan specifically tailored to these motions.

Recently I received an e-mail from an attorney who followed my advice regarding General Objections. It went like this:

“I read your article ‘Why you Need to Bring a Motion to Strike General Objections,’ and filed a ‘Motion to Strike Defendants’ Preliminary Statement and Unmeritorious Objections.’ The Preliminary Statement contained many of the issues you pointed out in your article, and each of defendants’ responses to interrogatories and document requests contained the same 28 lines of objections. The court then separated the motions to compel from the motions to strike and refused to rule on the motion to strike stating “There is no such motion.” Is the court correct?”

Unlike Federal Rule Civil Procedure 26(e)(1) – (2), California law does not impose a continuing duty on a party to supplement their interrogatory or document responses. Biles v. Exxon Mobil Corp. (2004) 124 CA 4th 1315. Instead, the California Discovery Act has two statutes, C.C.P. §2030.070 and C.C.P. § 2031.050, that allow the propounding party to ask for updated information “bearing on answers already made” and “later acquired or discovered documents, tangible things, land or other property.”

Can a trial court order a party to disclose potentially privileged information because the party’s privilege log did not provide sufficient information for the court to evaluate whether the privilege applies? According to the Fourth District Court of Appeal, Division Three in Catalina Island Yacht Club v. The Superior Court of Orange County filed December 4, 2015 the answer isNO!

Several times per month I receive questions from attorneys regarding a discovery dilemma. Mostly the questions offer a novel twist on basic discovery. However, this latest query was quirkier than most and raised some interesting issues and misconceptions, so I thought I would share it with you. It went like this:

I served written discovery on a cross-defendant in a case, we are one of the defendants. Cross-defendant (represented by, the plaintiff’s counsel) has appeared in this case by way of demurrer. Cross-Defendant has refused to answer for the following reasons, (1) my clients are not parties to the cross-complaint so therefore we cannot propound discovery; (2) the court sustained the demurrer with leave to amend and the amended cross-complaint will be filed shortly by the cross-complainant; and (3) the cross-defendant lives in Europe and I need to go through the Hague Convention. I don’t think any of these are legitimate reasons for not responding to discovery.

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ABOUT KATHERINE

Katherine Gallo is a renowned expert in complex discovery issues, having developed a reputation with her extensive discovery seminars, in-house discovery training and in-depth articles on the discovery process.

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